In complex litigation, discovery can get out of control. This two-part article by Prism Litigation Technology discusses how to go from reactive to ready!
The two-part series titled (wait for it!) From Reactive to Ready: Managing Discovery in Complex Litigation (part 1 here and part 2 here), discuss how many legal teams still approach discovery reactively – responding to deadlines, discovery requests, and disputes as they arise – when they should instead adopt a proactive, strategic approach that begins at the earliest stages of a matter.
Part 1 discusses why discovery has become so complex, examining the series of recurring challenges that compound over time, such as:
Discovery Scope Doesn’t Stay Put
Complex litigation rarely stays within the boundaries of the original complaint. What begins as a focused dispute often expands to encompass additional business units, product lines, decision-makers, policies, time periods, and communication channels. Every expansion broadens the universe of potentially relevant information, making it increasingly difficult to maintain a clear understanding of what has been preserved, collected, reviewed, and produced.
There are seven other recurring challenges complicating discovery. Check out part 1 here to review them.
Part 2 discusses (among other things) the common practices of the teams that consistently manage complex litigation successfully, such as:
They Create a Single Source of Truth
One of the greatest threats to discovery control is fragmentation. Custodian information lives in one spreadsheet. Legal hold records reside in another system. Collection history is maintained by a vendor. Search terms are documented in email threads. Key strategic decisions exist only in meeting notes, or worse, just in someone’s memory.
That may work early in a case. It rarely works two years later.
Leading litigation teams create a centralized record of discovery activity that becomes the authoritative source for the matter. Instead of recreating decisions every time new issues arise, they build on an organized foundation that captures:
- Custodian identification and history
- Preservation activity
- Data source inventories
- Collection history
- Culling and search methodologies
- Discovery decisions and supporting rationale
When opposing counsel challenges a discovery decision or a client simply asks for a status update, the answers are readily available instead of buried across multiple systems.
This isn’t simply better organization. It creates institutional knowledge that survives attorney transitions, vendor changes, related litigation, and years of case activity.
Visibility becomes the foundation of defensibility.
There are four other common practices for consistently managing complex litigation successfully. Check out part 2 here to review them.
So, what do you think? Do you feel that your organization has gone from reactive to ready in managing complex litigation? Please share any comments you might have or if you’d like to know more about a particular topic.
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Disclosure: Prism Litigation Technology is an Educational Partner and sponsor of eDiscovery Today.
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.